Com. v. Hussey, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES HUSSEY,
Appellant No. 1701 EDA 2016
Appeal from the Judgment of Sentence Entered January 11, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001919-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 20, 2017
Appellant, James Hussey, appeals from the judgment of sentence of an
aggregate term of 4 to 8 years’ incarceration, imposed after a jury convicted
him of various sexual offenses committed against a minor female victim.
Appellant raises seven claims on appeal, including challenges to evidentiary
decisions by the trial court, as well as the legality of his sentence. After
careful review, we affirm.
Briefly, Appellant’s convictions stemmed from his touching the victim,
his niece, in a sexually inappropriate manner on two different occasions.
Following a jury trial, Appellant was convicted of two counts each of the
following offenses: indecent assault of a person less than 13 years of age,
18 Pa.C.S. § 3126(a)(7); endangering the welfare of a child (EWOC), 18
Pa.C.S. § 4304(a)(1); and corruption of a minor (COM), 18 Pa.C.S. § 6301.
On January 11, 2016, Appellant was sentenced to consecutive terms of 1 to
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2 years’ incarceration for each count of indecent assault and EWOC for which
he was convicted, totaling an aggregate term of 4 to 8 years’ incarceration.
Appellant’s two counts of COM merged for sentencing purposes.
Appellant filed a timely post-sentence motion and the trial court
conducted a hearing on that motion on February 23, 2016. On April 28,
2016, the court issued an order and an accompanying opinion denying
Appellant’s post-sentence motion. Appellant filed a timely notice of appeal,
and he also timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. On June 20,
2016, the trial court issued a Rule 1925(a) opinion.1
On appeal, Appellant presents seven claims for our review:
1. Whether, prior to trial, the [t]rial [c]ourt committed an error
of law when it denied [Appellant’s] proffer of expert testimony
on the phenomenon of false confessions in general, and where
the trial court’s ruling substantially agreed with
____________________________________________
1
Therein, the trial court states that all of the issues raised by Appellant in
his Rule 1925(b) statement were addressed in its April 28, 2016 opinion
denying his post-sentence motion. The record belies the trial court’s
conclusion. In his Rule 1925(b) statement, Appellant presented seven
issues for this Court’s review; only one of those issues, a challenge to
Appellant’s sentence, was addressed by the court in its April 28, 2016
opinion. The lack of a trial court opinion regarding Appellant’s remaining
issues makes our review of his claims more difficult; however, it does not
impede us from meaningfully assessing his arguments, as the reasons for
the trial court’s challenged rulings are evident in the record. Thus, while we
could remand this case for the court to file an appropriate responsive
opinion, we decline to do so.
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Com[monwealth] v. Alicia, 625 Pa. 429[, 92 A.3d 753] (Pa.
2014) (disallowing testimony on false confessions in general)?
2. Whether, prior to trial and under Crawford v. Washington,
541 U.S. 36 (2004), the [t]rial [c]ourt committed an error of law
when it allowed the admission of the hearsay statements of the
minor victim … made to Dr. Horn-Alsberge?
3. Whether, prior to trial, the [t]rial [c]ourt abused its discretion
when it permitted the victim’s mother … and Dr. Horn-Alsberge,
to testify to the hearsay statements of the minor victim … and
where the statements were redundant, needlessly cumulative,
and unduly prejudicial?
4. Whether, prior to trial, the [t]rial [c]ourt abused its discretion
when it permitted the introduction of … a “Story Book” compiled
under the supervision of Dr. Horn-Alsberge containing an
additional recitation of the minor victim’s statement hand-
illustrated by the minor victim and where this exhibit was
needlessly cumulative and unduly prejudicial?
5. Whether, during trial, the [t]rial [c]ourt abused its discretion
when it failed to apply the Business Records Exception and
sustained the Commonwealth’s objection to the testimony of
Anna Parys of Monroe County Children and Youth?
6. Whether, during trial, the [t]rial [c]ourt committed an error of
law when it limited [Appellant’s] expert witness[’s] testimony on
the topic of false reports?
7. Whether, at sentencing, the [t]rial [c]ourt committed an error
of law when it found that counts one and two, Indecent Assault,
did not merge for sentencing purposes with counts three and
four, [EWOC]?
Appellant’s Brief at 9.
Appellant’s first six issues challenge evidentiary rulings made by the
trial court.
The standard of review employed when faced with a challenge to
the trial court's decision as to whether or not to admit evidence
is well settled. Questions concerning the admissibility of
evidence lie within the sound discretion of the trial court, and a
reviewing court will not reverse the trial court's decision absent a
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clear abuse of discretion. Abuse of discretion is not merely an
error of judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill
will.
Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citations
omitted).
In Appellant’s first issue, he challenges the trial court’s decision to
preclude him from presenting expert testimony regarding “the phenomenon
of false confessions….” Appellant’s Brief at 18. Appellant acknowledges that
our Supreme Court has held that this specific type of expert testimony
“constitutes an impermissible invasion of the jury’s role as the exclusive
arbiter of credibility.” Id. (citing Alicia, 92 A.3d at 764). Appellant
contends, however, that Alicia “should be overturned as violating []
Appellant’s right to Due Process.” Id.
This Court has no authority to overrule Alicia. Our Supreme Court
has declared that “the intermediate appellate courts are duty-bound to
effectuate [our Supreme] Court’s decisional law.” Walnut Street
Associates, Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 480 (Pa.
2011). The Court has also declared that “[i]t is beyond peradventure that
the Superior Court must follow [the Supreme] Court’s mandates, and it
generally lacks the authority to determine that [the Supreme] Court’s
decisions are no longer controlling.” Id. (citing Commonwealth v. Jones,
554 A.2d 50, 51-52 (Pa. 1989)). Accordingly, this Court cannot overturn our
Supreme Court’s decision in Alicia. As Appellant concedes that the trial
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court followed Alicia in refusing to admit the at-issue expert testimony, his
challenge to the court’s decision in that regard is meritless.
Next, Appellant contends that his Confrontation Clause rights were
violated because of how the Commonwealth presented the victim’s
testimony in this case. The entirety of Appellant’s argument is as follows:
Here, the victim did not testify face to face, but testified
via [a] contemporaneous alternative method. This is not
problematic in itself, but was compounded by the fact that the
victim was excused after her testimony and then her statements
were re-introduced through other figures who could not then be
cross-examined on the victim’s statements to any meaningful
effect. As such, the jury was presented with reinforced
statements by the victim which were in no way meaningfully
challenged by cross-examination. The prior opportunity to
cross-examine, in such circumstances, cannot be deemed
‘adequate.’
Appellant’s Brief at 19.
Appellant’s argument lacks citation to, let alone discussion of, any
pertinent legal authority. This Court has stated:
When briefing the various issues that have been
preserved, it is an appellant’s duty to present arguments that
are sufficiently developed for our review. The brief must support
the claims with pertinent discussion, with references to the
record and with citations to legal authorities. Citations to
authorities must articulate the principles for which they are
cited.
This Court will not act as counsel and will not develop
arguments on behalf of an appellant. Moreover, when defects in
a brief impede our ability to conduct meaningful appellate
review, we may dismiss the appeal entirely or find certain issues
to be waived.
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Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007), appeal
denied, 940 A.2d 362 (Pa. 2008) (citations omitted).
Even if Appellant’s undeveloped argument was adequate to permit our
meaningful review of his claim, he has nevertheless waived this issue by
failing to cite to where in the record he objected to the Commonwealth’s
decision to call the victim to the stand first, and then excuse her before
calling its other witnesses. Appellant indicates that this issue was raised in a
pretrial motion filed on September 14, 2015. See Appellant’s Brief at 10,
19. However, our review of that motion reveals that Appellant did not
specifically assert this claim therein. Additionally, he did not object when
the Commonwealth called the victim as its first witness at trial, nor when the
victim’s mother took the stand after the victim had testified. See N.T. Trial,
10/27/15, at 33, 74. Appellant also did not object when the victim’s mother
testified about statements made to her by the victim. See id. at 78, 81-83.
Consequently, without Appellant’s specifying where in the record he
preserved the claim that his Confrontation Clause rights were violated by the
victim’s testifying first in this case, he has waived this claim for our review.
See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).
In Appellant’s third issue, he argues that the trial court abused its
discretion by admitting the testimony of the victim’s mother and Dr. Michelle
Horn-Alsberge, a psychologist who counseled the victim in this case.
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According to Appellant, these witnesses’ testimony should have been
excluded under Pa.R.E. 403, which states:
The court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.
Pa.R.E. 403.
Appellant’s entire argument regarding why the testimony of the
victim’s mother and Dr. Horn-Alsberge should have been excluded under
Rule 403 is as follows:
The testimony of [the victim’s mother] and Dr. Horn-
Alsberge was needlessly repetitive of the victim’s own testimony.
Nothing testified to by either witness added anything to the trial
beyond vouching for the victim’s credibility. This testimony also
unfairly prejudiced [] Appellant by supplanting the jury’s role of
judging the victim’s credibility with judging other witness[es]’
credibility who were not witnesses to the alleged criminal act.
The danger of the jury[’s] improperly relying upon the credibility
of the victim’s mother and doctor to establish that the sexual
assault [occurred] … far outweighed the probative value of their
testimony.
Appellant’s Brief at 20.
Again, Appellant has presented this Court with an undeveloped
argument that is insufficient to permit our meaningful review of his claim.
Appellant does not cite to any case law to support his assertion that these
witnesses’ testimony should have been excluded under Rule 403. More
problematic, however, is Appellant’s total failure to point to any specific
testimony by these witnesses that was cumulative or allegedly impeded the
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jury’s credibility determinations. Consequently, we deem this claim waived
for our review. See Hardy, 918 A.2d at 771.
We reach the same conclusion for Appellant’s fourth issue, in which he
provides only one sentence of argument: “Given the similar bases for
appeal, the discussion of issue three (3) above, suffices for a discussion of
the admission of the ‘Story Book’ as well.” Appellant’s Brief at 21. Because
Appellant’s argument in support of his third issue was insufficient to avoid
waiver of that claim, his fourth issue is waived as well. See Hardy, 918
A.2d at 771.
In Appellant’s fifth issue, he asserts that the trial court abused its
discretion by not permitting him “to introduce a Children and Youth
[Services (CYS)] report containing statements by the victim and her
mother,” which, according to Appellant, “implicated a different person … in
the sexual assault at issue in this case.” Appellant’s Brief at 22. At trial,
defense counsel attempted to admit this report through the testimony of
Anna Parys, a CYS employee who supervised the case regarding the victim’s
allegations of sexual abuse. See N.T. Trial, 10/28/15, at 34. The
Commonwealth objected to the admission of the CYS report arguing, inter
alia, that it contained hearsay. See id. at 35. In response, defense counsel
argued that the report was admissible under the ‘business record’ exception
to the rule precluding hearsay. The court agreed that the business record
exception applied to admit the statements made in the report by the CYF
employee who drafted it. See id. at 40. However, the court found that
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there were “multiple layers of hearsay” in the report, and that defense
counsel had not demonstrated an exception applied to each of those levels
of hearsay. Id. at 42-43.
We ascertain no abuse of discretion in the court’s decision. “‘Hearsay’
is defined as “a statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).
Hearsay is not admissible, unless one of the exceptions set forth in Pa.R.E.
803 applies. See Pa.R.E. 802. One such exception is the ‘business record’
exception, which is set forth in Rule 803(6), as follows:
(6) Records of a Regularly Conducted Activity. A record
(which includes a memorandum, report, or data compilation in
any form) of an act, event or condition if:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a “business”, which term includes
business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for
profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
Pa.R.E. 803(6).
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Here, the parties do not dispute that the CYF employee’s statements in
the report were admissible under the business record exception. However,
the report also contained statements made to the CYF employee by the
victim, the victim’s mother, and another family member. Appellant contends
that these statements do not constitute hearsay because they “were not
being offered to prove the truth of the matter” asserted, i.e., “that [another
individual] committed the sexual assault[.]” Appellant’s Brief at 23.
According to Appellant, “the statements were offered to prove that the
victim was not telling the truth that [] Appellant committed the assault or
that she was so confused about the sexual assault that she should not be
credited by the jury.” Id.
Appellant essentially argues that the report was admissible for
impeachment purposes. However, at trial, defense counsel repeatedly
stated that the report was not being offered as impeachment evidence;
instead, counsel declared that she was seeking to admit the report as
substantive evidence to prove the truth of the matter asserted therein,
namely the truth of the statements made to the CYF employee by the victim,
her mother, and another family member. See N.T. Trial, 10/28/16, at 38-
41. Therefore, Appellant’s argument that the statements contained within
the CYS report were not being admitted to prove the truth of what they
asserted was waived by counsel below.
Moreover, we agree with the trial court that the CYS record was
hearsay itself, and that it contained layers of hearsay statements within it.
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Specifically, the report discussed statements made by the victim, her
mother, and another family member. Thus, Appellant was required to
demonstrate that each of those layers of hearsay was covered by an
exception to the rule precluding hearsay. See Hreha v. Benscoter, 554
A.2d 525, 529 (Pa. Super. 1989) (“Where a business record contains
multiple levels of hearsay … it is admissible only if each level falls within a
recognized exception to the hearsay rule.”). In this vein, defense counsel at
trial only briefly argued that the victim’s statements in the report fell within
the ‘party opponent’ exception. See Pa.R.E. 803(25); N.T. Trial, 10/28/15,
at 43. The Commonwealth countered that the victim was not a party in this
case; rather, Appellant and the Commonwealth were the parties. N.T. Trial,
10/28/15, at 43. The trial court rejected defense counsel’s attempt to admit
the victim’s statement under the ‘party opponent’ exception, and Appellant
makes no argument on appeal that it erred in that regard.
In sum, Appellant’s argument fails to demonstrate that the trial court
abused its discretion in precluding the admission of the CYS report. The
report itself, while admissible under the business record exception,
contained multiple layers of hearsay statements by the victim, her mother,
and another family member. Defense counsel stated that she was seeking
to admit those statements to prove the truth of what they asserted, yet
counsel failed to demonstrate the applicability of any exception to the rule
precluding the admission of those hearsay statements. Accordingly,
Appellant’s fifth issue is meritless.
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In Appellant’s next claim, he argues that the trial court abused its
discretion by precluding certain testimony by his expert witness, Dr. Frank
M. Dattilio. Dr. Dattilio was admitted, without objection by the
Commonwealth, “as an expert in the field of clinical and forensic psychology,
specifically in the area of treatment of abuse victims.” N.T. Trial, 10/28/15,
at 11. The court clarified, prior to the doctor’s taking the stand, that “his
testimony will be limited to the general behavioral characteristics of victims
of sexual assault pursuant to Title 42 [Pa.C.S.] § 5920.” Id. That statute
states:
§ 5920. Expert testimony in certain criminal proceedings
(a) Scope.--This section applies to all of the following:
(1) A criminal proceeding for an offense for which
registration is required under Subchapter H of Chapter 97
(relating to registration of sexual offenders).
(2) A criminal proceeding for an offense under 18 Pa.C.S.
Ch. 31 (relating to sexual offenses).
(b) Qualifications and use of experts.--
(1) In a criminal proceeding subject to this section, a
witness may be qualified by the court as an expert if the
witness has specialized knowledge beyond that possessed
by the average layperson based on the witness's
experience with, or specialized training or education in,
criminal justice, behavioral sciences or victim services
issues, related to sexual violence, that will assist the trier
of fact in understanding the dynamics of sexual violence,
victim responses to sexual violence and the impact of
sexual violence on victims during and after being
assaulted.
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(2) If qualified as an expert, the witness may testify to
facts and opinions regarding specific types of victim
responses and victim behaviors.
(3) The witness's opinion regarding the credibility of any
other witness, including the victim, shall not be admissible.
(4) A witness qualified by the court as an expert under this
section may be called by the attorney for the
Commonwealth or the defendant to provide the expert
testimony.
42 Pa.C.S. § 5920 (footnote omitted).
During Dr. Dattilio’s testimony, he was asked - without objection by
the Commonwealth - if he could provide reasons “why a child would make a
false allegation[]” of sexual abuse. N.T. Trial, 10/28/15, at 14. The doctor
opined:
[Dr. Dattilio:] Well, there’s actually four clinical subtypes. The
first and most common is when there is a custody issue or
there’s intra[-]familial strife, one way or the other, a dispute
between adults or family members. We find that 50 percent of
false allegations come from that domain and is most common.
And the second may be because there was a mental
illness, could be a delusional disorder, a paranoid disorder, or
could be some drugs involved; usually with older individuals,
teenage, 15, 16, 17, that age.
The third is when there may be conscious manipulation for
reasons of secondary gain, to fabricate them.
…
And then the last is what we call iatrogenic….
[Defense Counsel:] And what would that be?
[Dr. Dattilio:] Literally, doctor or professional induced. And that
can be deliberate, but it also can be non-deliberate by virtue of
the fact that the individuals who investigate may be doing a less
than adequate job in ferreting out the truth. And there can be a
lot of reasons for that.
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You know, law enforcement, they’re inundated with cases.
… They’re busy, they don’t have a lot of time, they do the best
that they can, but sometimes it’s harried. They do quicker
interviews, and sometimes it may be induced by virtue of leading
questions. And there’s stopgaps that help that. There’s certain
structured programs that are empirically weighted, they’re
designed. We train child advocacy programs and investigators
to use them so that they don’t mislead and they protect the
alleged victim, as well as the alleged perpetrator, so that it’s
legally and dutifully bound.
Id. at 14-17.
Defense counsel then asked the following question of Dr. Dattilio:
[Defense Counsel:] Now, are there generally accepted or is there
a method that’s preferable when interviewing children that are
making these allegations so as to prevent any leading, tainted or
the iatrogenic results that you’re talking about?
Id. at 17. The Commonwealth objected to this question, and a sidebar was
held, at which the Commonwealth argued as follows:
[The Commonwealth:] Judge, the basis for the objection is if
there’s a false report, that’s actually a crime. The person’s not a
victim.
This specifically covers victim[s] of sexual abuse and
sexual violence. This is delving into false reports and false
allegations. I don’t think it’s covered by the statute. …
[B]ecause if someone makes a false report of rape, they end up
getting charged and they’re a criminal, not a defendant.
[Defense Counsel:] We’re not putting [the victim] in the seat of
defendant.
[The Court:] But it sounds like what you’re getting into is the
area -- is law enforcement and investigative tactics, as opposed
to behavioral characteristics of a sexual assault victim. So I’m
going to sustain the objection.
Id. at 17-18.
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Now, on appeal, Appellant argues that the court erred by sustaining
the Commonwealth’s objection to defense counsel’s question, which he
submits was a proper attempt to elicit Dr. Dattilio’s expert testimony about
“a victim’s response based upon varying methods used to question that
victim either by law enforcement or counselors.” Appellant’s Brief at 25.
Characterizing the issue before us as one of statutory interpretation,
Appellant contends that section 5920 must be read as permitting the type of
testimony he sought to elicit from Dr. Dattilio. He reasons that “[a]n expert
cannot opine on what a victim’s response would be if the expert cannot also
discuss what the victim is responding to, i.e. the various methods of
questioning by police and counselors.” Id. at 26. Appellant further argues
that “[t]he statute specifically provides that responses ‘after being assaulted’
are a subject of the testimony, which would naturally include the questions
to which the victim is responding. That the expert had concluded that
certain methods of questioning by police or counselors produce false
information from victims is also a ‘type’ of response that [] Appellant had a
statutory right to elicit from his expert.” Id.
Preliminarily, we disagree with Appellant that, based on the record
before us, we can assess the entire scope of section 5920. The record
makes clear that the trial court placed a limit on Dr. Dattilio’s testimony by
explicitly ruling that he could only opine about “the general behavioral
characteristics of victims of sexual assault pursuant to 42 [Pa.C.S.] § 5920.”
N.T. Trial, 10/28/15, at 11. Appellant at no point objected to the court’s
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constraint. We also point out that when the Commonwealth lodged its
objection to the at-issue question, Appellant did not present any of the
arguments he now raises on appeal, regarding the scope of section 5920;
instead, defense counsel simply stated, “We’re not putting [the victim] in the
seat of defendant.” Id. at 18. When the court ultimately sustained the
Commonwealth’s objection, it did so on the basis that the testimony sought
to be elicited did not pertain to “behavioral characteristics of a sexual assault
victim[,]” referring to the limit it had set on the scope of the doctor’s
testimony. Id. at 18. Consequently, because Appellant never argued before
the trial court that section 5920 allows the testimony he sought to elicit from
Dr. Dattilio, and he did not lodge any objection to the limit the court placed
on the doctor’s testimony, we cannot assess whether the statute, as a
whole, permits the sort of testimony Appellant attempted to elicit in this
case. Instead, we must limit our review to whether the trial court abused its
discretion in concluding that the desired testimony would violate its ruling
that the doctor’s testimony must be limited to ‘general behavioral
characteristics of victims of sexual assault.’
In conducting this assessment, we find it pertinent that in the question
to which the Commonwealth objected, defense counsel asked Dr. Dattilio to
opine on the preferred method for interviewing a child who was only then
alleging sexual abuse, but who had not yet been determined to be a victim
of such abuse. Given the precise language of the at-issue question, we are
not convinced that the doctor’s answer to that question would have been
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within the scope of the trial court’s limitation on his expert testimony. In
other words, we ascertain no abuse of discretion in the trial court’s
conclusion that the testimony sought to be elicited from Dr. Dattilio -
regarding how to interview a child who may, or may not, have been sexually
abused - did not constitute testimony about ‘general behavioral
characteristics of a sexual assault victim.’ Accordingly, Appellant’s sixth
issue is meritless.
In Appellant’s seventh and final issue, he contends that his sentences
for indecent assault are illegal because those offenses should have merged,
for sentencing purposes, with his convictions for EWOC. Preliminarily, our
Supreme Court has stated:
Whether Appellant's convictions merge for sentencing is a
question implicating the legality of Appellant's sentence.
Consequently, our standard of review is de novo and the scope
of our review is plenary.
***
Section 9765 provides:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.
42 Pa.C.S. § 9765.
The statute's mandate is clear. It prohibits merger unless two
distinct facts are present: 1) the crimes arise from a single
criminal act; and 2) all of the statutory elements of one of the
offenses are included in the statutory elements of the other.
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Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).
Here, Appellant claims that indecent assault is a lesser-included
offense of EWOC. The indecent assault crime for which Appellant was
specifically convicted is defined as follows:
(a) Offense defined.--A person is guilty of indecent assault if
the person has indecent contact with the complainant, causes
the complainant to have indecent contact with the person or
intentionally causes the complainant to come into contact with
seminal fluid, urine or feces for the purpose of arousing sexual
desire in the person or the complainant and:
***
(7) the complainant is less than 13 years of age…[.]
18 Pa.C.S. § 3126(a)(7). The offense of EWOC is defined in the Crimes
Code as follows:
(a) Offense defined.--
(1) A parent, guardian or other person supervising the
welfare of a child under 18 years of age, or a person that
employs or supervises such a person, commits an offense
if he knowingly endangers the welfare of the child by
violating a duty of care, protection or support.
18 Pa.C.S. § 4304(a)(1).
Appellant concedes that each of these offenses requires a different
intent element. See Appellant’s Brief at 29 (“The mens rea for each crime
differ[s].”). More specifically, he acknowledges that “[i]ndecent [a]ssault
requires an intent to arouse sexual desires, while [EWOC] requires [a]
knowing violation of a duty of care.” Id. at 29 (citing 18 Pa.C.S. § 3126
(defining indecent assault and requiring the offense be committed “for the
purpose of arousing sexual desire in the person or the complainant”) and
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Commonwealth v. Cottam, 616 A.2d 988, 1005 (Pa. Super. 1992) (stating
that the mens rea for the crime of EWOC “is a knowing violation of a duty of
care”)). Appellant argues, however, that “our Supreme Court’s decision in
[Commonwealth v.] Jones[, 912 A.2d 815 (Pa. 2006),] strongly supports
merger despite this difference in the mens rea.” Appellant’s Brief at 29.
According to Appellant, Jones establishes that in conducting a merger
analysis, the court must not only consider the statutory definitions of the
offenses, but it must also assess “the actual allegations involved.” Id.
Appellant’s reliance on Jones is unconvincing. Initially, he fails to
recognize that Jones is a plurality opinion, with “a ‘lead opinion’ approach to
merger and a ‘dissenting opinion’ approach to merger.” Commonwealth v.
Williams, 920 A.2d 887, 889 (Pa. Super. 2007). As our Supreme Court has
clarified, plurality decisions have “no precedential weight….” Baldwin, 985
A.2d at 835. In any event, we recognize that, consistent with Appellant’s
argument, the lead opinion in Jones did adopt a “practical, hybrid approach”
that requires an evaluation of “the statutory elements [of each crime], with
an eye to the specific allegations leveled in the case.” Jones, 912 A.2d at
822. However, that approach has since been rejected by our Supreme Court
in Baldwin, where the Court held that “[a] plain language interpretation of
Section 9765 reveals the General Assembly’s intent to preclude the courts of
this Commonwealth from merging sentences for two different offenses that
are based on a single criminal act unless all of the statutory elements of one
of the offenses are included in the statutory elements of the other.”
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J-S10007-17
Baldwin, 985 A.2d at 837 (footnote omitted). Because in this case,
Appellant acknowledges that the statutory definition of indecent assault has
at least one element that is not included in the definition of EWOC - i.e., an
intent to arouse sexual desire - his reliance on Jones does not demonstrate
that those two crimes should have merged for sentencing purposes.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2017
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